Saturday, February 04, 2012

In Part I, I described why ACTA is not the intrinsically
evil entity that people think it is. In fact, it is a relatively boring and
toothless trade agreement that does not place any additional burdens on
countries beyond what most signatories already have in their own national
legislations.

So, am I going to go and withdraw my signature from the
petition to stop ACTA, and tell my MEPs that they are free to vote for it if
they can trade that favor for, let’s say, better agricultural subsidy terms for
Estonian farmers?

I won’t. While ACTA’s text is nowhere near scary enough to
warrant the level of public opposition it has received, the existence of that
opposition is in itself a reason to reject the treaty.

As
I have said before, if the majority of a democratic society expresses its
desire sufficiently unambiguously, then that desire must be implemented, even
if it is counter to the prevailing ideology. Governments and legislation exist
only because it is not feasible to seek a referendum on each policy decision.
At this stage, it would actually be technologically
possible, but the general population does not have the time to thoughtfully
consider the implications of a matter and arrive at an informed opinion. This
is replaced by politicians running on broad platforms, and the people choose
the broad direction they feel most comfortable with, then delegate their
decision power. But the decision power stems from the people, and if the people
actually care about an issue strongly enough, then that overrides the opinions
of politicians, and the existing laws of the land.

ACTA is a touchstone issue. The anti-ACTA protests are not
the result of the text of ACTA itself, or its implications; they are the result
of an attempt to impose outdated behavioral models on an evolved technological
world. And while a small layer of specialists may be genuinely worried about
things like region-free DVDs or burdens on service providers, the majority of
the human force of protesters is worried about something else. Everyone who saw
the Wikipedia blackout and called their senator – for them, SOPA/PIPA/ACTA was
only the last straw. Their patience was worn down, and their anger slowly built
up, by the fight between rights holders and filesharers.

The Internet allows digital content – music, video, text,
software – to be copied near-infinitely, at very little incremental cost. This
creates a conflict. Consumers would like all content to be available for free.
Rights holders would like to receive full retail payment for each created copy.
Over the last decade or so, a dynamic balance has been reached. Businesses
generally do not use pirated software, and this is heavily enforced. Consumers
will prefer to use legitimate software and acquire legitimate content, where it
has been made convenient for them, and where the price reflects the fact that
the incremental cost of creating and delivering a copy has fallen dramatically
since the days of cassette tapes. They do this partially on moral grounds, and
partially because they recognize the importance of supporting the content
creator. But consumers remain very aware of two things.

1)The content creator and the rights holder are often
different entities. Consumers part with their money far more easily when it
goes directly to the content creator (who then covers the expenses of
production and delivery out of their revenue, and keeps the profit) than when
it goes to a rights holder, who distributes that revenue in opaque ways. Even
if the content creator makes a lot of money, people still resent the middleman.
There is no sympathy for rights holders.

2)People are aware that the filesharing
alternative exists. Where cumbersome artificial copy-protection measures makelife difficult for legitimate customers, and prices are perceived as being too
high, they will turn to torrenting.

The origin of SOPA/PIPA, and the perceived threat of ACTA,
is that the rights holders are attempting to legislate away the advances of digital
technology, and the de-facto capabilities of consumers. This is why the public
opposes ACTA. And the public’s voice
must be heard. In a democratic state, if the will of the people is as clear
as it has been made with ACTA, governments must submit to it, even if it is
contrary to the interests of the rights holders.

If the public feels that intellectual property should not be
protected or enforced in the way envisioned by ACTA, that's just too bad for
the rights holders. The public must then deal with the possibility that content
will no longer be created if rights cannot be enforced. Implications must not
be hidden from the people, and their impact must not be softened. But the will
of the people must be paramount.

Digital rights enforcement is broken, and is actively
counter to both the will of the people and the technological reality. That is
what the web demos are protesting, really. Yes, ACTA was the catalyst because
its communication was grossly mishandled, but it does come down to the issue
that modern technology allows for free content distribution, and the rights
holders have mostly chosen to ignore the change in technology and attempt to
enforce outdated business models through legislative means.

It's the same as the War on Drugs in that sense; if everyone
is smoking weed, it's stupid to put people in jail for carrying a joint. If
everyone is downloading, it's stupid to put people in jail for downloading.

One of the most preposterous things is that the issue has
been successfully resolved for a different medium (analog-media copying) and
works today. There was a hidden tax on every blank cassette tape and VHS tape
sold, and that money was divided amongst rights holders. Even before that,
there was the radio fee distribution scheme – radio stations pay to broadcast
music, as do public venues that play music through their in-house audio systems.
The equivalent solution – long since proposed and already adopted by some EEC
members and other countries – is to place a flat levy on Web access, as payment
for the implied piracy. This produces far less revenue for rights holders than
they would like, but it resolves the moral issue while protecting the rights of
consumers.

There are compromises to be made in the fight against piracy.
As for ACTA, it is an issue of democracy. Because the people have chosen to
reject it, and made their opinions heard, the politicians must reject it as
well.

Thursday, February 02, 2012

There has been plenty of noise on
the Internet about ACTA, the treaty that includes provisions on regulating
copyright infringement on the Internet. There is a lot of criticism, but most
of it is emotional and confusing. A fellow Euroblogger, looking for
clarification on the meaning of ACTA, contacted me and asked if I had actually
read the full text.

I hadn’t. So I did.

A few disclaimers to begin: I Am Not A Lawyer. I am, however,
interested in European affairs and technology politics; I have been asked to
comment on politics before, by press and official organizations; and by
occupation I am a technical writer and translator. Some people pay me to read complicated
legal texts, understand what they mean, and recreate that meaning very accurately
in a different language. Other people pay me to take complicated ideas and
concepts, and explain them in simple, understandable ways. They keep paying me,
so I guess I’m good at it. (If any lawyers are reading this and have
substantial objections to my analysis, I'd love to talk to you in the comments!)

The text of ACTA that I am using
is this one: http://www.dfat.gov.au/trade/acta/Final-ACTA-text-following-legal-verification.pdf.
There are many versions and drafts of ACTA around. That one appears to be the
final one that’s being signed. I will quote relevant bits of text, but in any
case I encourage you to go and read the source. By the standards of
international treaties, ACTA is very understandable and unambiguous.

Most of ACTA’s text is actually
about counterfeit trademark goods – things like knock-off designer handbags and
fake name-brand sneakers. I will disregard all of that, and just focus on
things that have to do with the Internet. (None of the stuff about knock-off
handbags and sneakers is objectionable, it’s all about seizing shipments and
border controls.)

Got that? OK.

First, the good news:

ACTA
does not supersede national legislation. It is an international treaty
under the umbrella of the World Trade Organization. It is not a law of the land
in the same way that SOPA/PIPA was in America. It has very specific language to
this effect, in Article 3: “This
Agreement shall be without prejudice to provisions in a Party’s law governing
the availability, acquisition, scope, and maintenance of intellectual property rights.
[…] This Agreement does not create any
obligation on a Party to apply measures where a right in intellectual property
is not protected under its laws and regulations. […] In implementing the provisions of this Chapter, each Party shall take
into account the need for proportionality between the seriousness of the
infringement, the interests of third parties, and the applicable measures,
remedies and penalties.” In the text of ACTA, some paragraphs say “shall”
and some say “may”. For the latter, the country gets to decide if those will be
implemented in its own legislation. Each country is explicitly permitted to
have exceptions in its own legislation, choosing not to make certain activities
illegal. This is part of the opening paragraphs, the context for everything
that follows. Also pay attention to the principle of proportionality. In
America, where massive civil lawsuits result in disproportionate financial
settlements, the principle of proportionality does not seem to be widely
upheld. In Europe – and particularly in Estonia, where many have complained
about overly lenient prison sentences for crimes such as rape and murder – a specific
reference to proportionality is very soothing to individual Internet users.

ACTA does not turn individual pirates
into criminals. Even if it is accepted as written and the country does not
claim an exception under its own laws. There are two relevant sections here:
Chapter II, Section 2 “Civil Enforcement” and Section 4 “Criminal Enforcement”.
Under the latter, Article 23 says: “Each
Party shall provide for criminal procedures and penalties to be applied at least
in cases of wilful trademark counterfeiting or copyright or related rights
piracy on a commercial scale. For the purposes of this Section, acts carried
out on a commercial scale include at least those carried out as commercial
activities for direct or indirect economic or commercial advantage.” ACTA
requires each country to criminalize companies such as Megaupload (which was
making a profit directly out of copyright infringement) and the sort of
counterfeit software shops that Estonia used to have in the late 90s-early
2000s, where people were actually selling CDs and DVDs of software – making
money out of it. As written, ACTA’s criminal enforcement articles would not even
apply to The Pirate Bay, which does not make money from copyright infringement
(it takes donations and sells merchandise with its own logo, demonstrably only
making enough money to cover its operational expenses – a non-profit
organization, not operating on a commercial scale). These provisions certainly do
not apply to individual downloaders, for whom no money ever changes hands while
they torrent.

ACTA
does not place unreasonable burdens on service providers. The American
version, SOPA/PIPA, scared the likes of Google and Wikipedia because it would
have made it possible for rights holders to force-close websites for something
as small as a visitor posting a link to unlicensed media in a comment box, and
because it would have forced ISPs – the companies that provide Internet
connections to homes and offices – to actively hide websites, effectively
censoring content. All of this would be done without any involvement by courts,
and without any ability to challenge the rights holders’ claims. But in ACTA, there
is specific language to prevent this. In Article 6: “These procedures shall be applied in such a manner as to avoid the
creation of barriers to legitimate trade and to provide for safeguards against
their abuse.” And in Article 27: “These
procedures shall be implemented in a manner that avoids the creation of
barriers to legitimate activity, including electronic commerce, and, consistent
with that Party’s law, preserves fundamental principles such as freedom of
expression, fair process, and privacy.” Again, ACTA leaves a lot of room
for countries to individually decide what constitutes a barrier, an abuse and a
fair process.

ACTA
does not introduce limits that are not already in Estonian legislation, nor in any
Western country’s legislation, I suspect. The Estonian government already
released a statement saying nothing in Estonian law or practice would have to
change because of ACTA. The test case for this is Estonia’s filesharing
loophole: it is technically illegal (though rarely prosecuted) to upload unlicensed
content, but if you’re only downloading a copy and not allowing anyone else to
copy it off you, then you’re fine. From ACTA’s most draconian part, Article 27
paragraph 7b: “to distribute, import for
distribution, broadcast, communicate, or make available to the public copies of
works, performances, or phonograms, knowing that electronic rights management
information has been removed or altered without authority.” You will note
that it says distribute, but not acquire. The loophole stands.

Now
for the bad news.
There are two parts of ACTA that can justifiably make the Internet public
nervous.

The first is Article 27, which
requires countries to have legislation against copyright offenses on the
Internet. However, this is about circumvention
– actively removing copy-protection from works, and does not cover using works
with it already removed for personal purposes. (You can’t crack a game, but you
can download and play a cracked one, if you set your torrent client’s upload
speed limit to zero.) It is also about making circumvention measures available – but not using them. (Building a keygen or a cracked EXE file for a game is illegal;
downloading that EXE and using it on your own computer is not.) This is where
you have to do some soul-searching. Will the Internet really be destroyed if
the people who create copy-protection workarounds are declared criminals?
Remember that a) they already have been
under most national legislations and ACTA does not introduce any new measures
to find them, b) they are few and far between, and c) as a group they have
stayed anonymous very effectively until now, and will probably stay anonymous
if ACTA passes.

Article 27 also makes
distributing that content illegal. You are liable for uploading content,
including participating in BitTorrent file-sharing the way it is meant to work –
not just receiving data, but sending it to others as well. But remember that
this is merely illegal, not criminal; and that ACTA leaves room for countries
to decide just how much they care about stopping you from doing it.

The other disturbing part of ACTA
is in Chapter II, Section 2 “Civil Enforcement”, Article 9. Without quoting the
full text (go and read it!), this introduces the rights holders’ favorite idea:
that civil damages from copyright infringement should be measured in the retail
cost of a single copy of the content, multiplied by the number of copies made.
Or, for a single filesharer, the sum of the retail prices of all songs, movies,
games etc. found on their computers. This obviously is to the benefit of the
rights holders, letting them demand more money. It is also completely,
self-evidently idiotic to anyone who has studied even the simplest, most basic
level of economics, the elasticity of demand. Actually, it’s intuitively
idiotic to anyone who has ever made a purchasing decision when they wanted two
things and only had enough money for one.

When a type of product is
available for free, and is easy to get, then people will get any item that seems
even the least bit interesting. Digital content that you will end up not liking
doesn’t even take up room in your closet, so there isn’t even an opportunity
cost to stop you from getting it. And since downloading a file doesn’t mean
someone else is deprived of the ability to use that file – perfect copies are
created without damaging the original – there is no low-level moral argument
against downloading, like there is against stealing an apple from a tree in
your neighbor’s garden. But if you have to give up some of your money in
exchange for digital content, then you will simply get a lot less of that
content, because your money is limited, and there are a lot of things which you
would like to have more than music or movies that aren’t very interesting to
you.

The revenue that rights holders
lose to digital piracy is not equivalent to the sum retail price of all
existing pirated copies. They would never have sold that many copies. To claim
otherwise is disingenuous on the part of the rights holders, and this is the main
reason why normal people – not zealots who believe all information must
necessarily be free – have no sympathy for the rights holders.

And normal people are the ones
who matter. That is why ACTA – which is not evil, nowhere near as destructive
as SOPA/PIPA, and in fact a boring trade agreement that does not change
anything significant in any participating country’s legislation – must be
rejected.

But this article is long enough
already, so you’ll have to wait for Part II to read what I mean by that.
(Sorry, Jacques, I know it was the second part you really wanted me to write
today, but I got carried away!)